Duncan v. Pullum
Citation | 198 So.2d 658 |
Decision Date | 05 May 1967 |
Docket Number | No. 7315,7315 |
Parties | Byron DUNCAN, Appellant, v. Jesse PULLUM and Hoyt Pope, Appellees. |
Court | Court of Appeal of Florida (US) |
Claude M. Harden, Jr., of Surles & Harden, Lakeland, for appellant.
Robert E. Austin, Jr., of Warren, Warren & Austin and John F. Cherry, Leesburg, for appellees.
Plaintiffs, appellees here, were seeking to recover under a purported Indemnity Agreement, signed by the defendant, appellant here, in connection with the sale by defendant of stock purchased by plaintiffs.
Defendant filed a motion to dismiss, supported by affidavit, alleging that venue of the case was improper in that defendant is a resident of Polk County, not Lake County where the action was filed, and that demand was made upon the defendant in Polk County, for compliance with the terms of the agreement.
The agreement listed purportedly all of the outstanding liabilities of the corporation and was for the purpose of indemnifying plaintiff for any accounts of the corporation not listed in the Indemnity Agreement.
Accounts of the corporation totalling $12,622.16 were subsequently discovered and demand was made upon defendant for payment of this account. Defendant refused to pay because he had been told that current accounts payable were not to be included in the Agreement, but were to be paid out of current accounts receivable.
Defendant's motion to dismiss the complaint for want to proper venue was denied by order dated March 17, 1964. Subsequently, by order dated August 18, 1966, the trial judge (1) struck defendant's counterclaim alleging fraud with prejudice; (2) struck portions of defendant's amended answer; and (3) struck at least one affirmative defense. This order was appealed by defendant September 1, 1966.
We will deal first with the problem of the appealability of an order which struck portions of appellant-defendant's amended answer, affirmative defenses and which struck appellant-defendant's counterclaim. Discussion will also raise the reviewability of an order, made approximately two years before appeal, denying defendant's motion to dismiss plaintiff's complaint for want of proper venue.
It is quite clear that appeals can only be taken from final judgments, Huie v. State, Fla.1957, 92 So.2d 264, and that the rules provide review of non-final orders by interlocutory appeal and certiorari. Rules 4.2 and 4.5, Fla.App.Rules, 31 F.S.A.
In a recent case dealing with this subject, Smith v. State, Fla.App.1966, 187 So.2d 61, we quoted from Girten v. Bouvier, Fla.App.1963, 155 So.2d 745:
Our first problem is to categorize the portions of the order appealed. The order struck appellant-defendant's counterclaim with prejudice and also struck portions of his amended answer and affirmative defenses. The action began in equity but was transferred upon the motion to dismiss to the law side. Rule 4.2, Fla.App.Rules, dictates that interlocutory appeals in actions at law can only be from orders relating to venue or jurisdiction over the person. The order did not relate to venue or jurisdiction and therefore cannot be reviewed by interlocutory appeal.
The portion of the order which struck appellant-defendant's counterclaim with prejudice was final and appealable. Cf: Schwertfeger v. Constant, Fla.App.1959, 109 S.2d 173; Leeward & Hart Aeronautical Corp. v. South Central Airlines, Fla.App.1966, 184 So.2d 454; and Hillboro Plantation v. Plunkett, Fla.1951, 55 So.2d 534. The general rule is that a judgment, order or decree to be appealable as final must dispose of all the issues or causes in the case; but the rule is relaxed where the judgment, order or decree adjudicates a distinct and severable cause of action. 4 C.J.S. Appeal and Error § 95 (1957). This instant order terminated a separate cause of action, but arising out of the same subject matter, which defendant thought he had against plaintiff. Since this order was appealable, the motion filed by appellee seeking to quash the appeal was properly denied.
The remaining, but crucial, question is whether we can review upon the above final order entered on defendant's counterclaim all other proceedings arising out of plaintiff-appellee's complaint. Justice Thornal, in Auto Owners Ins. Co. v. Hillsborough County Aviation Authority, Fla.1963, 153 So.2d 722, defined orders reviewable entered before a final judgment. He stated:
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...Brite v. Orange Belt Security Co., 133 Fla. 266, 182 So. 892 (1938); Webb v. Scott, 129 Fla. 111, 176 So. 442 (1937); Duncan v. Pullum, 198 So.2d 658 (Fla. 2d DCA 1967). Attorneys' fees may be a proper element of damages when they are incurred in litigation or for legal services other than ......
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...order granting a motion to dismiss a complaint with prejudice is not a final order. But the Segal court reasoned that Duncan v. Pullum, 198 So.2d 658 (Fla. 2d DCA 1967), and the "approval" of Duncan by the Florida Supreme Court in Mendez v. West Flagler Family Association, Inc., 303 So.2d 1......
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Harris v. P.S. Mortg. and Inv. Corp.
...order brings up for review only interlocutory orders entered as "a necessary step" leading to the appealed order); Duncan v. Pullum, 198 So.2d 658, 661 (Fla. 2d DCA 1967) (same). See generally 3 Fla.Jur.2d Appellate Review §§ 306-08 (1978). Nonetheless, we recognize that after the trial cou......
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